By Jeffrey A. Roberts
CFOIC Executive Director
A Colorado Senate committee Wednesday evening advanced legislation that would open records on completed law enforcement internal affairs investigations.
House Bill 19-1119, which passed the House last month, now heads to the Senate floor for debate. The Senate Judiciary Committee’s 3-2 vote kept the House version intact, despite an attempt to make the bill apply only to substantiated complaints against officers.
Sen. John Cooke, R-Greeley, suggested that amendment, noting that only substantiated complaints against attorneys ever become public. But proponents of the bill pointed out that some unsubstantiated complaints against police officers have led to high-dollar payouts by local governments in Colorado.
In one such case, cited by staff attorney Rebecca Wallace of the American Civil Liberties Union of Colorado, the city of Aurora paid a man $110,000 to settle his claims against an officer who tased him in the back, even though he had complied with the officer’s directions. The police department found that the officer’s actions were “reasonable, appropriate and within policy,” but the city won’t disclose the internal affairs file so that the public can understand how that conclusion was reached.
“There are a number of reports that have merit that are classified to be unsubstantiated, and that’s a problem,” said Sen. Mike Foote, the Lafayette Democrat who is sponsoring the bill in the Senate. “And none of the states that have this kind of disclosure, and including Denver, make this kind of distinction.”
Foote also said he would be concerned that requiring the public release of only substantiated case files could create a “perverse incentive” for law enforcement agencies to find more internal affairs cases unsubstantiated “and, therefore, non-disclosable.”
HB 19-1119 is similar to unsuccessful 2018 legislation, but it includes additional provisions aimed at protecting the privacy of witnesses, victims, confidential informants and officers who participate in an internal affairs investigation but aren’t the subject of the investigation.
Currently, under the Colorado Criminal Justice Records Act, records of internal affairs investigations can be withheld from the public upon a finding that disclosure would be “contrary to the public interest.” The bill, which pertains only to an officer’s on-duty or in-uniform conduct, makes completed internal affairs files records of “official action” that must be disclosed after certain redactions. Law enforcement agencies would be permitted to first provide a summary before giving access to an entire internal affairs file.
Denver is the only jurisdiction in Colorado that consistently makes internal affairs records available to the public, and 14 other states have statutory, constitutional or court-derived schemes that allow access to such records.
During Wednesday’s hearing, Foote quoted from a 2005 Denver District Court decision to explain his view on why internal affairs records should be made public: “ Open access to internal affairs files enhances the effectiveness of internal affairs investigations, rather than impairing them. Knowing that they will be scrutinized makes investigators do a better job and makes them and the department more accountable to the public.
“Transparency also enhances public confidence in the police department and is consistent with community policing concepts and represents the more modern and enlightened view of the relationship between police departments and the communities they serve.”
Sen. Bob Gardner, R-Colorado Springs, said he voted against the bill because it wouldn’t be just responsible journalists who would gain access to the records. It would be “anyone and everyone, including those who blog and those who Twitter and those who do any number of other things.”
“I think this is very difficult needle to thread,” Gardner said. “I don’t think we’ve quite got it threaded.”
The Colorado Freedom of Information Coalition supports HB 19-1119 as do the ACLU of Colorado, the Colorado Press Association, the Colorado Broadcasters Association, Common Cause of Colorado and the Independence Institute.
Follow the Colorado Freedom of Information Coalition on Twitter @CoFOIC. Like CFOIC’s Facebook page. Visit CFOIC’s legislature page to track bills in the General Assembly that could affect the flow or availability of information in Colorado.